Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

This is transparency. The production of organized, machine-readable data has allowed these differing groups—an advocacy organization, a spending analysis group, and a “Web 2.0” transparency site—to expand the discussion about earmarks. The data is available to any group, to the press, and to political scientists and researchers.

Earmarking is a questionable practice, and, anticipating public scrutiny, House and Senate Republicans have determined to eschew earmarks for the time being. But the earmark requests in this database are still very much “live.” They could be approved in whatever spending legislation Congress passes for the 2011 fiscal year. They also tell us how our representatives acted before they got careful about earmarks.

Earmarks are a small corner of the federal policy process, of course, but when all legislation, budgeting, spending, and regulation has become more transparent—truly transparent, Senator Durbin—the public’s oversight of Congress will be much, much better. As I noted at our December 2008 conference, “Just Give Us the Data,” progressives believe that it would validate government programs and root out corruption. (That’s fine—corruption and ongoing failure in federal programs are not preferable.) I believe that demand for government will drop. The average American family pays about $100 per day for the operation of the federal government currently. That’s a lot.

At considerable expense and effort, these sites have done what President Obama asked Congress to do in January. If earmarking is to continue, Congress could produce earmark data as a matter of course itself: The appropriations committees could take earmark requests online and immediately publish them, rather than using the opaque exchange of letters, phone calls, and—who knows—homing pigeons.

Congress should modernize and make itself more transparent. We’re showing the way.

There is full disclosure in my office of every single request for an appropriation. We then ask those who have made the requests to have a full disclaimer of their involvement in the appropriation, so it’s there for the public record. This kind of transparency is virtually unprecedented.

Senator Durbin doesn’t know transparency. Take a look at Senator Durbin’s earmark disclosures. Yes, you can read through them, one by one. But can you make a list of recipients? Can you add up the totals? Can you search for common words in the brief explanations for each earmark? Can you make a map showing where recipients of Senator Durbin’s requests are?

No, no, no, and no.

That’s because Senator Durbin puts his request disclosures out as scanned PDFs. Someone on his staff takes a letter and puts it on a scanner, making a PDF document of the image. Then the staffer posts that image on the senator’s web site. It’s totally useless if you want to use the data for anything. Notably, Senator Durbin doesn’t even include the addresses of his earmark recipients.

Early this year, President Obama called for “a comprehensive, bipartisan, state-of-the-art disclosure database that allows Americans to examine the details of every proposed earmark before a vote is taken.” He wasn’t talking about WashingtonWatch.com or the public doing this work—he was talking about Congress putting a database together with earmark data in useful formats.

Later in the early part of the year, I worked with a small group of transparency activists to show Congress how to do earmark transparency. Earmarkdata.org has our earmark data schema—the guide to producing earmark information in a way the public can use. (You can sign a petition there to support earmark transparency.)

No, Senator Durbin, your earmarks are not transparent. We’re producing the state-of-the-art database. We’re setting the precedent for transparency. Your PDF-image disclosures are a day late and a dollar short.

Here are the votes on the earmark moratorium taken in the Senate this morning. A “No” vote supports continuation of earmarking. A “Yes” vote is opposed to earmarking.

With a key vote on earmarks slated for next Tuesday in the Senate Republican Conference, Republican leaders are having it out on whether their party should eschew earmarking or continue the practice. The debate centers on the division of power between Congress and the executive branch.

Earmarks have been part of the congressional process since the founding of our country. As James Madison, the father of the Constitution viewed it, appropriating funds is the job of the legislature. Writing in the Federalist, he noted that Congress holds the power of the purse for the very reason that it is closer to the people. The words of Madison and Article 1 Section 9 of the Constitution say that authorization and appropriations are exclusively the responsibility of the legislative branch. Congress should not cede this authority to the executive branch.

And he criticizes the anti-earmark movement as “pseudo” fiscal responsibility:

While anti-earmarkers bloviate about the billions spent through earmarks, many of them supported the trillions of dollars in extra spending for bailouts, stimulus, and foreign aid. Talk about specks versus planks! Over the course of the last several years, the overall number and dollar amount of earmarks has steadily decreased. During that same time, overall spending has ballooned by over $1.3 trillion. In reality, ballyhooing about earmarks has been used as a ruse by some to seem more fiscally responsible than they really are.

Those who view earmarking as an expression of the “congressional prerogative” sell Congress short of its preeminent role as the first branch of government. As the defenders of earmarking are fond of saying, earmarks represent less than 2 percent of all federal spending. Precisely! By focusing on a measly 2 percent of spending, we have given up effective oversight on the remaining 98 percent.

This lopsided exchange can be examined empirically. As the number of earmarks has risen significantly over the past two decades, the amount of oversight exercised by the House Appropriations Committee — as measured by the number of hearings held, witnesses called, etc. — has declined substantially. It is as if Congress has called a truce with the executive branch: Don’t hassle us about our 2 percent, and we’ll offer only token interference with your 98 percent.

Senator Inhofe misuses Federalist #58. The “power of the purse” refers to the fact that revenue measures must originate in the popularly elected House, strengthening its hand against the Senate, whose membership was to be selected by state legislatures. But he is right to castigate the earmark opponents who have thrown buckets of taxpayer money into the wind when Washington, D.C., has lately spun itself into a whirl.

Inhofe’s static view of earmarking produces the weaker of the two arguments, though. Rep. Flake is right to recognize earmarking’s dynamic effects. The fiscal weaklings—majorities in both parties—decline oversight and go along with spending bills they might otherwise oppose because of goodies for their home states or districts.

Earmarker comity may even cause fiscal conservatives to go wobbly. Try counting the number of amendments Senator Inhofe has offered seeking to strike earmarks in 23 years of debating spending bills on the Senate floor, and you may not need to raise a finger on either of your hands.

The right answer is to take what both of these debaters has to offer. Earmarks should go, and Congress should withdraw spending discretion from the executive branch while it reduces spending overall.

Republicans’ hands have been strengthened by a wave of voter angst about big-spending and business-as-usual in Washington, D.C. But have they landed on their limited-government feet? The first test of that question comes next Tuesday.

That’s when Senate Republicans will likely vote on a proposal to bar themselves from requesting earmarks. Last year, House Republicans adopted that policy for themselves the day after House Democrats limited their earmarking to non-profits and government bodies.

McConnell’s own state may have changed, too. Witness the election of Rand Paul (without McConnell’s help). Paul supports the earmark ban.

McConnell has framed his opposition to the earmark ban as an argument for preserving Congress’ “discretion”—that is, its authority over the spending of federal dollars. Without earmarks, the administration will decide where the money is spent. But there’s a pretty long list of things McConnell could work for if he wants to defend Congress’ prerogatives, such as:

- Forcing the administration to be transparent about the grants it doles out.

- Limiting or eliminating the administration’s grant-making and spending discretion.

- Withdrawing all the other massive delegations of authority that Congress has given to the executive branch.

- Reducing spending and cutting taxes so that spending discretion is where it should be: with the taxpayers who earned the money in the first place.

Earmarks are not a huge part of the federal budget, but that does not militate against ending them. Senator Tom Coburn (R-Okla.) calls them a “gateway drug to federal spending addiction,” which is a folksy way of talking about the political science of “log-rolling.” Former member of Congress Joe Scarborough (R-Fla.), who has seen it first-hand, talks in this clip about how House and Senate leaders use earmarks to buy votes on legislation they want to get passed.

If earmarks go away as a tool for wheeling-and-dealing in Congress, members and senators will be less likely to sell out the country as a whole with bloated spending bills and Rube-Goldberg regulatory projects for the benefit of some local interest or campaign contributor.

I’ll be speaking next Monday at a Hill event on earmark transparency. The vote in the Senate Republican Conference is Tuesday. It’s a secret ballot, so any senator who doesn’t trumpet his or her support of the earmark ban almost certainly opposes it and supports the practice of earmarking.

As a campaigner, President Obama promised that bills sent him by Congress would be posted online for five days before he would sign them. It’s a simple, measurable transparency promise that we have followed on this blog.

With attention beginning to turn to the 2012 presidential election (believe it or not!), President Obama’s fealty to campaign promises will become a focus. So here’s an update on his Sunlight Before Signing promise.

First, a brief summary table. Congress has presented President Obama 283 bills, 124 in 2009 and 159 in 2010. He posted six online for the requisite number of days in 2009, and 103 in 2010. (One emergency bill did not require posting. It’s non-posting is consistent with the president’s promise so we treat it as “compliant” in summary materials.)

Number of Bills

Emergency Bills

Bills Posted Five Days

2009

124

0

6

2010

159

1

103

Overall

283

1

109

The graph below illustrates well that the administration has improved on the, frankly, lousy start it got with Sunlight Before Signing. In the month of May, every bill was posted on Whitehouse.gov for five days before the president signed it.

There remains a residuum of bills that don’t seem to get Sunlight Before Signing, and those may be the ones where political expedience takes precedence over the president’s campaign promise to his voters. But the White House is clearly positioned to fulfill this promise completely in the second half of the president’s term.

The chart below (that is, after the break) exhibits the same data—Sunlight Before Signing compliance by month—with percentages of non-compliance and compliance. After that, you’ll find a table of every bill the president has signed and its treatment in terms of sunlight.

There will be a short spate of bills during the lame duck session. The next report in late December will capture the entire first half of the president’s term, setting the stage for reporting on the White House’s 100% success rate in 2011 and 2012.

Full compliance will give the press and public a way to know exactly what hits the president’s desk, and an opportunity to make a habit of reviewing Congress’ work before bills become laws.

(Parentheses indicate a separate Whitehouse.gov page with a link to Thomas legislative database)
* Page now gone, but it was either directly observed, evidence of it appears in Whitehouse.gov search, or White House says it existed.
[Brackets indicate a link from Whitehouse.gov to Thomas legislative database]

† Bill was posted for five days after final passage, though not formal presentment. Counted as “Yes.”

‡ Link to final version of bill on impossible-to-find page.

E! Emergency legislation not subject to five-day posting. Counted as “Yes” in simplifying graphs and tables.

If agencies used consistent data formats for their financial information, their financial reports could be electronically reconciled. It would be possible to trace funds from Congressional appropriations through agencies’ budgets to final use. The same data could flow automatically into USASpending.gov, without the errors and inconsistencies that make it unreliable today.

The idea is simple, if not easy to implement. Put government data in uniform formats, accessible to the public, and let public oversight work its will. Whether you prioritize good government, small government, or both, expect improvement.

Yes, TARP was economically misguided. But the bailout also was fundamentally corrupt, featuring special favors for the well-heeled. I don’t like it when lower-income people use the political system to take money from upper-income people, but it is downright nauseating and disgusting when upper-income people use the coercive power of government to steal money from lower-income people.

Now, to add insult to injury, we’re being fed an unsavory gruel of deception as the political class tries to cover its tracks. Here’s a story from Bloomberg about the Treasury Department’s refusal to obey the law and comply with a FOIA request. A Bloomberg reporter wanted to know about an insider deal to put taxpayers on the line to guarantee a bunch of Citigroup-held securities, but the government thinks that people don’t have a right to know how their money is being funneled to politically-powerful and well-connected insiders.

The late Bloomberg News reporter Mark Pittman asked the U.S. Treasury in January 2009 to identify $301 billion of securities owned by Citigroup Inc. that the government had agreed to guarantee. He made the request on the grounds that taxpayers ought to know how their money was being used. More than 20 months later, after saying at least five times that a response was imminent, Treasury officials responded with 560 pages of printed-out e-mails – none of which Pittman requested. They were so heavily redacted that most of what’s left are everyday messages such as “Did you just try to call me?” and “Monday will be a busy day!” None of the documents answers Pittman’s request for “records sufficient to show the names of the relevant securities” or the dates and terms of the guarantees.

Here’s another reprehensible example. The Treasury Department, for all intents and purposes, prevaricated when it recently claimed that the AIG bailout would cost “only” $5 billion. This has triggered some pushback from Capitol Hill GOPers, as reported by the New York Times, but it is highly unlikely that anyone will suffer any consequences for this deception. To paraphrase Glenn Reynolds, “laws, honesty, and integrity, like taxes, are for the little people.”

The United States Treasury concealed $40 billion in likely taxpayer losses on the bailout of the American International Group earlier this month, when it abandoned its usual method for valuing investments, according to a report by the special inspector general for the Troubled Asset Relief Program. …“The American people have a right for full and complete disclosure about their investment in A.I.G.,” Mr. Barofsky said, “and the U.S. government has an obligation, when they’re describing potential losses, to give complete information.” …“If a private company filed information with the government that was just as misleading and disingenuous as what Treasury has done here, you’d better believe there would be calls for an investigation from the S.E.C. and others,” said Representative Darrell Issa, the senior Republican on the House Committee on Oversight and Government Reform. He called the Treasury’s October report on A.I.G. “blatant manipulation.” Senator Charles E. Grassley of Iowa, the senior Republican on the Finance Committee, said he thought “administration officials are trying so hard to put a positive spin on program losses that they played fast and loose with the numbers.” He said it reminded him of “misleading” claims that General Motors had paid back its rescue loans with interest ahead of schedule.

P.S. Allow me to preempt some emails from people who will argue that TARP was a necessary evil. Even for those who think the financial system had to be recapitalized, there was no need to bail out specific companies. The government could have taken the approach used during the S&L bailout about 20 years ago, which was to shut down the insolvent institutions. Depositors were bailed out, often by using taxpayer money to bribe a solvent institution to take over the failed savings & loan, but management and shareholders were wiped out, thus preventing at least one form of moral hazard.